Freedom Of Information Act Reference Guide

(Issued February 2018 by the Office of Legal Counsel)

I. Introduction

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, a disclosure statute, provides that every person has the right to request access to federal agency records or information.  Federal agencies, such as the Equal Employment Opportunity Commission (EEOC), are required to disclose records upon receiving a written request for them, with the exception of records that are protected from disclosure by the nine exemptions and three exclusions of the FOIA.  This right of access is enforceable in court.  All states have their own statutes governing public access to state and local records, and state authorities should be consulted for further information concerning their statutes.

This reference guide is designed to familiarize you with the specific procedures for making a FOIA request to the EEOC.  The process is neither complicated nor time-consuming.  Following the guidance below will make it more likely that you will receive the information you are seeking in the shortest amount of time.  This guide also includes descriptions of the types of records maintained by the EEOC, some of which are available through means other than the FOIA.

Other general sources of information about how to make a FOIA request include:

The Office of Government Information Services (OGIS) is a Freedom of Information Act (FOIA) resource for the public and the government.  Congress has charged OGIS with reviewing FOIA policies, procedures and compliance of Federal agencies and identifying ways to improve compliance. Its mission also includes resolving FOIA disputes between Federal agencies and requesters, and can be accessed at https://ogis.archives.gov/.

"A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records."  This report is published by the Committee on Government Reform and Oversight of the House of Representatives. It is available for sale from the U.S. Government Printing Office, stock number 052-071-012-30-3, and can be accessed at http://www.fas.org/sgp/foia/citizen.html.

The formal rules for making a FOIA request to the EEOC are found in Part 1610 of Volume 29 of the Code of Federal Regulations (C.F.R.), 29 C.F.R. § 1610.  The regulations may also be found on the EEOC's web site at https://www.gpo.gov/fdsys/pkg/CFR-2013-title29-vol4/xml/CFR-2013-title29-vol4-part1610.xml.  A copy of § 1610 of C.F.R. may also be obtained from the EEOC, Library, 131 M Street, N.E., Washington, D.C. 20507.  In most cases, this reference guide will provide you with the basic information that you will need.

II. A. Executive Order 13392, "Improving Agency Disclosure of Information"

On December 14, 2005, President George W. Bush issued Executive Order 13392, "Improving Agency Disclosure of Information."  The President directed agencies to ensure citizen-centered and results-oriented Freedom of Information Act operations.  The Executive Order requires the following actions by agencies.

Designate a Chief FOIA Officer.  Carol S. Miaskoff, Associate Legal Counsel, is EEOC's Chief FOIA Officer.

Establish FOIA Requester Service Centers.  The Commission has established FOIA Requester Service Centers at its headquarters offices in Washington, DC and the Los Angeles District Office.  Contact information for the Centers is available on our website at https://www.eeoc.gov/foia/.  The Centers will provide FOIA requesters information concerning the status of their FOIA request and other appropriate information about the agency's FOIA response.

Designate Public Liaisons.  Stephanie D. Garner, Assistant Legal Counsel, is EEOC's Public Liaison.

Review EEOC FOIA administration, draft an improvement plan, and report to DOJ and OMB.

II. B. Openness Promotes Effectiveness in our National Government Act of 2007, or OPEN Government Act of 2007 and The FOIA Improvement Act of 2016

On December 31, 2007, President Bush signed into law the OPEN Government Act of 2007, to provide for greater agency transparency and accountability in its FOIA activities by:

Codifying requirement of a Chief FOIA Officer, establish FOIA Requester Service Centers and designate FOIA Public Liaisons;

Creating an Office of Government Information Services to assist in increasing agency transparency and to resolve disputes between requesters and agencies;

Defining term "Receive" and provides an agency with 10 working days to forward a misdirected FOIA request to the proper agency FOIA component;

Defining term "News" to Recognize Evolution of Methods of News Delivery to include electronic dissemination electronic dissemination of news and freelance journalists;

Expanding the term "Record" to include records maintained for an agency under a Government contract;

Permitting agency to toll the statutory time period to seek clarifying information or to clarify fee assessments;

Prohibiting agency to charge fees when a time limit is not complied with, unless unusual or exceptional circumstances exist;

Requiring individualized tracking numbers for requests to permit requesters to track status of the request via telephone or Internet site;

Requiring attorney fees and costs to be paid from agency annual appropriations when a requester substantially prevails; and

Enhancing reporting requirement to establish greater tracking and transparency of agency compliance with response times.

II.C.  Presidential Memorandum for the Heads of Executive Departments and Agencies on the Freedom of Information Act and Attorney General Eric H. Holder, Jr's. FOIA Guidelines for the Executive Branch

On January 21, 2009, his first full day in office, President Obama signed the "Presidential Memorandum for the Heads of Executive Departments and Agencies on the Freedom of Information Act," which established a new policy for Executive Branch departments and agencies concerning disclosure and transparency.  The President directed all agencies to administer the FOIA with a clear presumption in favor of disclosure, to resolve doubts in favor of openness, and to not withhold information based on "speculative or abstract fears."  The President also called on agencies to ensure that requests are responded to with "a spirit of cooperation," that disclosures are timely, and that modern technology is used to make information available to the public even before a request is made.  In closing, the President directed the Department of Justice "to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency."

On March 19, 2009, Attorney General Eric H. Holder, Jr. issued new FOIA guidelines for the Executive Branch.  Reiterating the President's commitment to open government, Attorney General Holder encouraged agencies to make discretionary releases when appropriate, and to make partial disclosures of records when full disclosures are not possible.  In issuing these guidelines, Attorney General Holder rescinded the October 12, 2001 Attorney General Memorandum on the FOIA, and established a "foreseeable harm" standard for defending agency decisions to withhold information.  Under this standard, the Department of Justice will defend an agency's denial of a FOIA request "only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law."  In keeping with the President's commitment to openness and with the Attorney General's FOIA Guidelines, agencies must now include the "foreseeable harm" standard as part of their FOIA analysis at both the initial request and the administrative appeal stages.

The Attorney General also emphasized that "the responsibility for effective FOIA administration belongs to all of us - it is not merely a task assigned to an agency's FOIA staff."  He noted that "[i]mproving FOIA performance requires the active participation of agency Chief FOIA Officers."  The Attorney General also recognized the FOIA professionals who carry out the day-to-day work of implementing the FOIA and declared that they "deserve the full support of the agency's Chief FOIA Officer to ensure that they have the tools they need to respond promptly and efficiently to FOIA requests."

The Attorney General reminded FOIA professionals "of their obligation to work 'in a spirit of cooperation' with FOIA requesters," noting that "[u]nnecessary bureaucratic hurdles have no place in the 'new era of open [g]overnment' that the President has proclaimed."  Finally, the Attorney General instructed agencies "to work proactively and to respond to requests promptly."  He called on agencies to "readily and systematically post information online in advance of any public request," and reiterated that "[t]imely disclosure of information is an essential component of transparency."

To ensure more effective FOIA administration, the Attorney General directed agency Chief FOIA Officers to "review all aspects of their agencies FOIA administration, with particular focus on the concerns highlighted" by his guidelines, and to "report to the Department of Justice each year on the steps that have been taken to improve FOIA operations and facilitate information disclosure at their agencies."  The Attorney General directed the Office of Information Policy (OIP) to establish guidelines for those reports.  Agencies' Chief FOIA Officer Reports are made available online by each agency and OIP in turn posts them in a central location on OIP's website. OIP prepares summaries of the reports and conducts assessments of agency implementation of the FOIA which are also made publicly available on OIP's website.  Finally, on the Department of Justice website FOIA.gov, detailed data regarding agency's implementation of the FOIA is displayed graphically and educational material about the FOIA is provided.

II.D.  FOIA Improvement Act of 2016

On June 30, 2016 President Obama signed into law the FOIA Improvement Act of 2016.  The Act addresses a range of procedural issues, including requirements that agencies establish a minimum of 90 days for requesters to file an administrative appeal and that they provide dispute resolution services at various times throughout the FOIA process.  The Act also codifies the Department of Justice's "foreseeable harm" standard, amends Exemption 5, creates a "Chief FOIA Officer Council," and adds two new elements to agency Annual FOIA Reports. Each of the principal changes is also summarized and discussed below:

Proactive Disclosures:

The "Rule of 3" is Codified for Frequently Requested Records:

• Agencies are now required to "make available for public inspection in an electronic format," records "that have been requested 3 or more times."

Disclosure Requirements:

Codification of Department of Justice's Foreseeable Harm Standard:

• Agencies "shall withhold information" under the FOIA "only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption" or "disclosure is prohibited by law."
• Agencies shall "consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible."
• Agencies shall "take reasonable steps necessary to segregate and release nonexempt information."
• This provision does not require disclosure of information "that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under [Exemption] 3."

Sunset on Deliberative Process Privilege:

• Exemption 5 of the FOIA is amended to provide that "the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested."

Changes in Procedures When Processing Requests:

Extending Time Limits - New Requirement when extending deadline beyond an additional ten days:

• Whenever agencies extend the time limits by more than ten additional working days, in the written notice to the requester they "must notify the requester of right to seek dispute resolution services from the Office of Government Information Services."

Fees - Further limitation on Assessing Search Fees (or, for requesters with preferred fee status, duplication fees) if Response time is delayed:  

• When agencies determine that "unusual" circumstances apply to the processing of a request, and they have provided "timely written notice to the requester," the delay is "excused for an additional 10 days." "If the agency fails to comply with the extended time limit," it may not charge search fees (or for requesters with preferred fee status, may not charge duplication fees).

Exception: If unusual circumstances apply and "more than 5000 pages are necessary to respond to the request," agencies may charge search fees (or, for requesters in preferred fee status, may charge duplication fees) if timely written notice has been made to the requester and "the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request."

Court Determination that "exceptional circumstances" exist: If a court determines that "exceptional circumstances exist," the agency's failure to comply with a time limit "shall be excused for the length of time provided by the court order."

Response Letters - New Required Elements for Response Letters:

When agencies make their determinations on requests they must offer the services of their FOIA Public Liaison and must notify requesters of their services provided by the Office of Government Information Services (OGIS).   They must also allow requesters a period of at least 90 days within which to file an administrative appeal.  Specifically, agencies must include in their notification to the requester:

• "the right of such person to seek assistance from the FOIA Public Liaison of the agency," and, in the case of an adverse determination:
• the right to appeal within a period of time "that is not less than 90 days after the date of such adverse determination," and
• "the right of such person to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services."

New Duties for Chief FOIA Officers:

There are now additional duties and responsibilities assigned to agency Chief FOIA Officers.

These officials are now required to:

• "offer training to agency staff regarding their [FOIA] responsibilities," and
• "serve as the primary liaison with the Office of Government Information Services and the Office of Information Policy."

Chief FOIA Officers are also now required to "review, not less frequently than annually, all aspects" of their agency's administration of the FOIA "to ensure compliance" with the FOIA's requirements.  The following topics are to be included in the review:  

• Agency regulations,
• Disclosure of records under paragraphs (a)(2)[ proactive disclosure provision] and (a)(8) [foreseeable harm standard],
• Assessment of fees and fee waivers,
• Timely processing of requests,
• Use of exemptions, and
• Dispute resolution services with the Office of Government Information Services or the FOIA Public Liaison.

Creation of Chief FOIA Officer Council:

The FOIA Improvement Act of 2016 creates a Chief FOIA Officer Council within the Executive Branch which will serve as a forum for collaboration across agencies and with the requester community to explore innovative ways to improve FOIA administration.  

• The Directors of the Office of Information Policy and the Office of Government Information Services are to serve as co-chairs of the newly created Chief FOIA Officer Council.
• Membership of the Council is composed of:
  1. The Deputy Director for Management of OMB,
  2. The Chief FOIA Officer for each agency, and
  3. Any other officers as designated by the co-chairs.
• GSA is to provide administrative support to the Council.
• The duties of the Council shall include the following:
  1. Develop recommendations for increasing compliance and efficiency under the FOIA.
  2. Disseminate agency experiences, ideas, best practices, and innovative approaches related to the FOIA.
  3. Identify, develop and coordinate initiatives to increase transparency and compliance with the FOIA.
  4. Promote development and use of "common performance measures for agency compliance" with the FOIA.
• The Council shall "consult on a regular basis" with requesters. It  shall "meet regularly  and such meetings shall be open to the public" and at least annually the Council must have an open meeting that permits interested members of the public to appear and present statements. 

Additions to Annual Reports:

There are additions to agency reporting requirements for their Annual FOIA Reports.

• On or before February 1 of each year, agencies must submit their Annual FOIA Report to the Attorney General and to the Director of OGIS.
• The Annual FOIA Report must include two new elements:
  1. The number of times "the agency denied a request for records under subsection (c)" of the FOIA, and
  2. The "number of records that were made available for public inspection in an electronic format under subsection (a)(2)."

• The raw, statistical data used in the agency's Annual FOIA Report must be available without charge, in an aggregated, searchable format, that may be downloadable in bulk.
• The Attorney General must notify Congress that agency Annual FOIA Reports are posted by March 1st.

Agency Reference Guides:

Agency FOIA Reference Guides must be made available in electronic format.

Department of Justice's Litigation & Compliance Report:

There are changes made to the requirements for the Department of Justice's FOIA Litigation and Compliance Report.

• The Department's annual Litigation and Compliance Report detailing the Department's efforts to encourage government wide compliance with the FOIA is now due to Congress and the President on March 1st.
• The disposition for each case listed in this report must include "each subsection, and any exemption, if applicable," involved in each case.
• The raw statistical data used in the report must be available without charge, in a searchable format, that is downloadable in bulk.

Revised Duties for OGIS:

The duties for OGIS have been revised and new reporting obligations are included.

• OGIS shall "identify procedures and methods for improving compliance" under the FOIA.
• In providing mediation services, OGIS may issue advisory opinions at its discretion or upon the request of any party to the dispute.
• Not less than annually OGIS shall submit to Congress and the President, and make available to the public electronically:
  1. A report on its findings from its reviews of agency policies, procedures, and compliance.
  2. A summary of its mediation services, including any advisory opinions issued and the number of times each agency engaged in dispute resolution with the assistance of OGIS or the FOIA Public Liaison.
  3. Any legislative and regulatory recommendations to improve FOIA.
• OGIS is not required to obtain prior approval of any officer or agency of the United States before submitting to Congress reports, recommendations, testimony, or comments, if such submissions include a statement indicating that the views expressed are those of the OGIS Director and not necessarily the views of the President.
• Not less than annually, OGIS shall hold a public meeting on its activities and "allow interested persons to appear and present oral or written statements."

Creation of Consolidated Online Request Portal:

The FOIA Improvement Act of 2016 requires that a new consolidated online request portal be built.  

• The Director of OMB, in consultation with the Attorney General, shall ensure the operation of a consolidated online request portal that:
  1. Allows the public to submit a request to any agency from a single website, and
  2. May include additional tools that OMB finds will improve FOIA.
• Agencies may still create or maintain independent online portals for submission of requests.
• OMB shall establish standards for interoperability between the consolidated portal and agency case management systems.

III. Access to Certain Records Without a FOIA Request

All agencies make certain types of records available without a FOIA request.  For the EEOC, many of these can be found on the EEOC's website, located at https://www.eeoc.gov/.  These records include the EEOC's National Enforcement Plan, the text of all federal statutes enforced by EEOC, interpretative guidance on Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, the Genetic Information Nondiscrimination Act and the Americans with Disabilities Act, and information on how to file a charge of discrimination.

The EEOC maintains public reading areas at its Headquarters library at 131 M Street, N.E., Fourth Floor, Washington, D.C. 20507 and in its District offices. These reading areas are available to the public by appointment. The following information is available at Headquarters:

1. Federal Register notices published by the Commission
2. EEOC's annual reports to Congress
3. EEOC's Compliance Manual and Index
4. EEOC Directives, including Internal Orders, Supplements, and Notices
5. Commission budgets submitted to Congress
6. Other materials that the Legal Counsel or designee has determined should be publicly available for inspection and copying in the public reading room under the FOIA.

In addition, the following information is available at the EEOC's District, Field, Area, and Local offices:

1. Blank EEOC forms relating to the Commission's procedures as they affect the public
2. EEOC's annual reports to Congress
3. EEOC's Compliance Manual and Index
4. EEOC Directives, including Internal Orders, Supplements, and Notices
5. Federal Register notices published by the Commission
6. Other materials that the Legal Counsel or designee has determined should be publicly available for inspection and copying in the public reading room under the FOIA.
7. Commission budgets submitted to Congress

The EEOC also makes certain information, such as its publications and standard forms, available in paper copy form without requiring a formal FOIA request.  Requests for these publications and forms can be made to the Office of Communication and Legislative Affairs, and will soon be available on the EEOC website.

The EEOC discloses information from employment discrimination charge files only to charging parties and/or respondent employers named in the charges and their counsel pursuant to section 83 of the EEOC Compliance Manual.  Requests for disclosure pursuant to section 83 should be addressed to the director of the office where the charge was filed or investigated.

IV. Where to Make a FOIA Request

The EEOC consists of a headquarters office in Washington, D.C. and a total of 53 district, field, area, and local offices located throughout the country, see https://www.eeoc.gov/field-office.  District offices process FOIA requests for their own records as well as for those located in field, area or local offices that report to them. Each district office has a District Director.

Requests for records under the FOIA must be submitted to the District Director for the pertinent district, field, area or local office at the district office address. The following types of records may be requested:

1. information about current or former employees of a district, field, area, or local office, e.g., name, present and past positions, and salaries;
2. existing non-confidential statistical data related to the case processing of a field office, e.g., number of charges filed;
3. agreements between the Commission and State or Local Fair employment agencies operating within the jurisdiction of the office; or
4. materials in district, field, area, or local office investigative files related to charges under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act (29 U.S.C. 206(d)); the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.); the Genetic Information Nondiscrimination Act (42 U.S.C. 2000ff et seq.); or, the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).

Requests for any other records or for records whose location are unknown to the requester, must be identified as a FOIA request and submitted in writing to: the Legal Counsel, Office of Legal Counsel, Assistant Legal Counsel, FOIA Programs, U.S. Equal Employment Opportunity Commission.  The request may be submitted by mail to: 131 M Street N.E., Suite 5NW02E, Washington, D.C. 20507.  The request may also be submitted electronically by fax to 202/653-6034, by e-mail to FOIA@EEOC.gov. or by Internet to https://eeoc.arkcase.com/foia/.  Your envelope or any other cover should clearly indicate that the content or attachment is a FOIA request.

V. How to Make a FOIA Request

Requests must be in writing, either handwritten or typed. Requests may be mailed or faxed to the appropriate EEOC office (https://www.eeoc.gov/field-office) or e-mailed to the District Director for that office (FirstName.LastName@eeoc.gov). FOIA requests to EEOC Headquarters may also be e-mailed to FOIA@EEOC.gov, by fax to 202/653-6034, or internet to https://eeoc.arkcase.com/foia/ which permits the requester to follow the status of the request online.

There is no special form or particular wording for making requests.  Simply state that you are requesting documents under the FOIA and describe the documents you are requesting.  In making your request, you should be as specific as possible with regard to names, dates, places, events, subjects, etc.  In addition, if you seek records about a charge or a case, you should provide the names of the parties, and the court or office in which the case/charge was filed.  If known, you should include any charge, case or file numbers or descriptions for the records that you want.  You do not have to give the name or title of a specific record.  The more specific you are about the records or types of records that you want, the more likely it will be that the EEOC will be able to locate those records and that any search charges will be minimized.  For example, if you filed a charge of discrimination and you wish to request a copy of the file, listing the charge number, the EEOC office where it was filed, and the name of the respondent will be helpful in deciding where to search and in determining which records respond to your request.

A FOIA request can be made for any agency record; however, this does not mean that the EEOC will disclose any record sought.  There are statutory exemptions that authorize the withholding of certain information.  When the EEOC does withhold information, it will specify which exemption of the FOIA permits the withholding.  You should be aware that the FOIA does not require agencies to do research for you, to analyze data, to answer written questions, or to create records in order to respond to a request.

VI. Time for Response

The Commission is required to respond to a FOIA request within 20 business days, excluding Saturdays, Sundays, and legal holidays.  The time to respond does not begin until the perfected request is received by a FOIA component, the Legal Counsel or designee or the district director or designee of an entity or office authorized by the EEOC to process FOIA requests.  This does not mean that the agency is required to send out the releasable documents within those 20 days.  The FOIA requires that EEOC send you a letter informing you of its decision within those 20 days; it can then send out the documents within a reasonable time after its decision or the receipt of fees owed.  The FOIA permits the EEOC to toll (stop) the statutory time period one time to seek information from a requester and to toll the statutory time period as many times as necessary to clarify fee assessments.

The FOIA Improvement Act of 2016 establishes a general prohibition on the assessment of certain fees when the FOIA's time limits are not met, unless one of three discrete exceptions to that prohibition is satisfied. Prior to the amendments there was a similar prohibition on the charging of certain fees when the FOIA's time limits were not met, but the exceptions to the prohibition swept more broadly and permitted the assessment of fees when "unusual" or "exceptional" circumstances, as defined by the FOIA, applied to the processing of the request.  As a result of the FOIA Improvement Act of 2016, the exceptions to the prohibition have been narrowed and require agencies to take specific steps in order to fall within them.

First Exception: "Exceptional Circumstances"

One exception occurs when a court has determined that "exceptional circumstances," as defined by the FOIA, exist. In those cases, the failure to respond within the FOIA's time limits is "excused for the length of time provided by the court order." 5 U.S. C. § 552(a)(4)(A)(viii)(II)(cc).  By its terms this exception is only applicable to the small subset of FOIA requests that go to litigation and where there is an applicable court order regarding the time afforded the agency to respond to the request.  Still, in those situations where "a court has determined that exceptional circumstances exist," the prohibition on charging certain fees is excused for the period of time designated by the court.

The Second & Third Exceptions: "Unusual Circumstances"

The other two exceptions apply independently of any litigation.  They both become applicable when the agency has determined that "unusual circumstances," as defined by the FOIA, apply and the agency has provided timely written notice of those "unusual circumstances" to the requester.  The FOIA defines "unusual circumstances" as:

1. I) "the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;"
2. II) "the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or"
3. III) "the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein."

                5 U.S.C. § 552(a)(6)(B)(iii).

For requests that do not present any of these "unusual circumstances" the second and third exceptions to the prohibition on charging certain fees do not apply.  As a result, if the agency is unable to satisfy the FOIA's 20 working-day time limit, it will not be able to assess search fees, or for a requester in a preferred fee category, it will not be able to assess duplication fees. 

When "unusual circumstances" are present, timely notice of those "unusual circumstances" means written notice provided within 20-working days of receipt of the request.  When timely written notice of unusual circumstances has been provided to the requester, the agency is eligible to invoke one of the two non-litigation-related exceptions to the prohibition on charging certain fees. 

Second Exception: Ten Additional Days Needed to Respond

When an agency has determined that "unusual circumstances" exist and it has provided timely written notice of those unusual circumstances to the requester, if the agency can provide its determination on the request within ten additional days, then the second exception is met and the agency can assess search fees for "all other" and "commercial use" requesters, or for requesters in preferred fee categories, i.e., representatives of the news media, or educational or noncommercial scientific institutions, the agency can assess duplication fees. Id. § 552(a)(4)(A)(viii)(II)(aa).  In other words, when the agency determines that unusual circumstances apply and that it needs ten additional days to process the request, it can assess fees as usual provided it timely notifies the requester of the unusual circumstances and processes the request within the ten additional days.  If, however, the agency needs more than ten additional days to process the request, it is not permitted to charge search fees (or for requesters in preferred fee categories, it may not charge duplication fees), unless the request falls within the third exception.

Third Exception: More than 5,000 Pages Necessary to Respond

The third exception is based on the number of pages that need to be reviewed in order to respond to the request.  When that number is more than 5,000 pages and all the required notifications have been timely made, the third exception to the prohibition on charging fees applies.

Specifically, the third exception becomes applicable when "more than 5,000 pages are necessary to respond to the request." Id. § 552(a)(4)(A)(viii)(II)(bb).  Like the second exception, the agency must first have determined that unusual circumstances apply and it must have provided timely written notice of those "unusual circumstances" to the requester.  That notice must include the additional elements required by the FOIA when an agency extends the time limit beyond ten additional days (i.e., providing an opportunity for the requester to narrow the request or arrange for an alternative time for processing, and making available the FOIA Public Liaison and the Office of Government Information Services). Id. § 552(a)(6)(B)(ii).  When that notice has been provided and the agency determines that more than 5,000 pages are necessary to respond to the request, the agency must discuss with the requester how the request could be narrowed in scope.  That discussion can occur via telephone, written mail, or email. If the agency has difficulty connecting with the requester, the FOIA requires that it must make at least three good-faith attempts to do so.  Once all these conditions are met, the agency will be able to charge all applicable fees for those requests where more than 5,000 pages need to be reviewed.

Under the FOIA, EEOC may also toll (stop) processing your request to seek additional information or clarifying information about fees from you.  If this occurs, you will be notified in writing prior to the expiration of the 20 working days.  The time to respond to your request will resume when EEOC receives your response to its request(s) for information.

VII. Expedited Processing

A request for records may be expedited upon the requester's demonstration of a compelling need. Compelling need means that the failure to obtain the records on an expedited basis could pose an imminent threat to the life or physical safety of an individual, or that the requester is primarily engaged in the dissemination of information and there is an urgency to inform the public concerning actual or alleged Federal government activity.  A request will not be expedited simply because a requester is facing a court deadline.

A request for expedited processing must set forth the reasons why the request should be expedited.  The requester must certify that the reasons given for seeking expedited processing of his request are true and correct to the best of his knowledge and belief.  The EEOC will notify the requester of its decision whether to grant expedited processing within ten days after receiving the certified request.  If the EEOC denies the request for expedited processing, the requester will be advised of his right to submit an administrative appeal, which will be handled expeditiously.

VIII. Fees

There is no initial fee to file a FOIA request and, in the majority of requests made to the EEOC, no fees are charged.  However, an agency is entitled to charge photocopying, search, and processing fees, as explained below.  Nonetheless, EEOC may not charge search (and in the case of a favored requester, fees for duplication) if it fails to comply with a time limit and unusual or exceptional circumstances are not present.

For the purposes of calculating fees only, the FOIA divides requesters into three categories.  First, commercial use requesters may be charged fees for searching for records, processing the records, and photocopying them.  Second, educational or noncommercial scientific institutions and representatives of the news media are charged only for photocopying expenses after the first 100 pages.  Third, requesters who do not fall into either of these first two categories are charged for searching and photocopying, but there is no charge for the first two hours of search time or for the first 100 pages of photocopies.  The EEOC currently charges $40.00 per hour for professional search and review time, $20.00 per hour for clerical search, $36.00 per hour for paralegal search and review time, $80.00 per hour for SES employee search and review time   and 15 cents per page for photocopying.  In all cases, if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee, the EEOC will not charge any fee at all.

You may always include in your request letter a specific statement limiting the amount that you are willing to pay in fees. If you do not do so, the EEOC will assume that you are willing to pay fees of up to $25.00.  If it is estimated that the total fees for processing your request will exceed $25.00, you will be notified in writing of the estimate and offered an opportunity to narrow your request in order to reduce the fees. If you do not wish to narrow your request, you will be asked to agree to pay the estimated fees.

Generally, you will not be required to pay the fees until the records have been processed and are ready to be sent to you; however, if you have failed to pay fees within 30 days of billing in the past, or if the estimated fees exceed $250.00, you may be required to pay the estimated fees in advance of receipt of the records.  Please be aware that if you agree to pay fees for a records search, you may be required to pay such fees even if the search does not locate any responsive records or if the located records are withheld.

IX. Fee Waivers

If you are advised or if you expect that a fee will be assessed, you may request a waiver of those fees; however, fee waivers are limited to situations in which a requester can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester.  Requests for fee waivers from individuals who are seeking records that pertain to them are generally denied under this standard because such disclosures usually will not result in any increase of the public's understanding of government operations and activities.  In addition, a requester's inability to pay fees is not a legal basis for granting a fee waiver.

X. Initial Request Determination

Once your request has been processed, you will be sent a written initial determination.  In many cases, the EEOC will include any documents that can be disclosed along with the determination letter. Where a fee has been assessed; however, the documents will be sent within a reasonable time after the fee has been paid.

The FOIA provides access to all federal agency records (or portions of those records), except for those that are withheld under nine exemptions and three exclusions (reasons for which an agency may withhold records from a requester).  These exemptions will be discussed in more detail in the next section.  The determination letter will advise you whether any information is being withheld pursuant to one or more of the exemptions.  When pages are being withheld in their entirety, the EEOC usually either will specify the number of pages being withheld or will make a reasonable effort to estimate the amount of the withheld information.  When records are being disclosed with redactions, the EEOC will indicate at the site of the redaction the amount of information redacted and the exemption used to withhold the information.

The vast majority of requests received by the EEOC are for charge files.  They are ordinarily not available under FOIA to anyone other than the charging party, respondent, or their counsel.  Even the charging party and respondent may not be entitled to the files if EEOC has not terminated its proceedings on the charge or if the time for filing a lawsuit has expired.  Specific documents contained in a file may be withheld from the charging party or respondent if they are privileged or disclosure would invade personal privacy or reveal a confidential informant's identity.

XI. Summary of Exemptions

The FOIA provides the public access to all federal agency records (or portions of those records), except for those records that are withheld under nine exemptions and three exclusions.

The exemptions authorize federal agencies to withhold information covering: (1) classified national defense and foreign relations information, (2) internal agency rules and practices, (3) information that is prohibited from disclosure by another federal law, (4) trade secrets and other confidential business information, (5) inter-agency or intra-agency communications that are protected by legal privileges, (6) information whose disclosure would invade someone's personal privacy, (7) information compiled for law enforcement purposes, (8) information relating to the supervision of financial institutions, and (9) certain geological information.  The three exclusions, which are not used by the Commission, pertain to especially sensitive law enforcement and national security matters.  Even if information may be withheld under the FOIA, the EEOC still may disclose it as a proactive disclosure if disclosure is not prohibited by any law and would not cause any foreseeable harm. A summary of the exemptions follows:

EXEMPTION 1

Exemption 1 allows for the withholding of national security information concerning the national defense or foreign policy that has been properly classified in accordance with the substantive and procedural requirements of the current national security classification executive order, Executive Order 12958, signed by President Bush on March 25, 2003. EEOC does not use this exemption.

EXEMPTION 2

Exemption 2 exempts records from mandatory disclosure that are "related solely to the internal personnel rules and practices of an agency."  Examples of information routinely withheld under Exemption 2 are rules relating to parking facilities, regulation of lunch hours, performance standards, sick leave policy, and similar types of information. EEOC rarely uses this exemption.

EXEMPTION 3

Exemption 3(A)(i) allows for the withholding of information prohibited from disclosure by another statute. EEOC routinely uses this exemption to deny access to Title VII, GINA and ADA charge files when the requester is not a party to the charge and to withhold EEO survey reports. Sections 706(b) and 709(e) of Title VII, Section 107 of the ADA and Section 207 of GINA specifically prohibit disclosure of Title VII, GINA and ADA charge files to third parties prior to the institution of a proceeding under Title VII, GINA or the ADA involving such information.  Section 709(e) also specifically prohibits disclosure of EEO survey reports prior to the institution of a proceeding under Title VII. Commission employees who do so are subject to fine and/or imprisonment.

Exemption 3(A)(ii) prohibits agencies from releasing any proposal submitted by a contractor in response to a competitive contract. Information withheld pursuant to the Exemption 3 includes, but is not limited to:

• Any Title VII, ADA or GINA charge file information requested by anyone other than the Charging Party or the Respondent to the charge, such as the charge file or information concerning the existence of charge files.
• Title VII, ADA or GINA information requested by the Charging Party or the Respondent after the time limitation for filing a lawsuit has expired and no lawsuit has been filed.
• References to other Title VII, ADA or GINA charges in the charge file.
• Information submitted by unsuccessful bidders for contracts with the EEOC.

EXEMPTION 4

Exemption 4 protects from disclosure information that would reveal "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential."  EEOC uses this exemption on occasion.  When the EEOC receives a FOIA request for trade secrets or confidential commercial or financial information, it is required by Executive Order 12,600 and its regulations to notify the submitter of the information of the FOIA request and permit the submitter an opportunity to object to disclosure of the record. The requester is advised of the submitter notification.

EXEMPTION 5

Exemption 5 protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency" from disclosure to the public.  EEOC routinely uses this exemption to deny access to internal documents that reflect the internal predecisional deliberations, recommendations, analyses, assessments, and opinions of Commission employees.  The FOIA Improvement Act of 2016 amended the privilege so that "the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested."  It also codified the Department of Justice's Foreseeable Harm Standard:

• Agencies "shall withhold information" under the FOIA "only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption" or "disclosure is prohibited by law."
• Agencies shall "consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible."
• Agencies shall "take reasonable steps necessary to segregate and release nonexempt information."
• This provision does not require disclosure of information "that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under [Exemption] 3." We also use this exemption to deny access to attorney work product and attorney client privilege information.  Information withheld pursuant to the Exemption 5 includes, but is not limited to:
• Investigative Memorandums.
• Recommendations, opinions, analysis, and conclusions that are deliberative in nature.
• Predecisional deliberative memorandums analyzing the merits of the case.
• Codes signifying the EEOC's predecisional assessment of the merit of a case.
• Documents that meet the requirements of attorney-client privilege or attorney work product.

EXEMPTION 6

Exemption 6 protects personal privacy interests in records contained in personnel, medical and similar files when disclosure of such records would constitute a clearly unwarranted invasion of personal privacy.  EEOC routinely uses this exemption to deny access to information such as home addresses, third party names, phone and social security numbers and medical information contained in personnel files. Information withheld pursuant to the Exemption 6 includes, but is not limited to:

• Personnel documents of EEOC employees such as performance appraisals, home addresses and phone numbers, social security numbers, health insurance coverage, and non-job-related affiliations.
• Personnel documents of third parties in agency charge files which would result in an invasion of personal privacy.

EXEMPTION 7

Exemption 7 has six sub-parts and is a special exemption that only applies to law enforcement agencies. EEOC is a law enforcement agency. We routinely use certain sub-parts of this exemption.  Exemption 7 allows for the withholding of "records or information compiled for law enforcement purposes," with the limitations discussed below:

EXEMPTION 7(A): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records "… could reasonably be expected to interfere with enforcement proceedings."  EEOC routinely uses this exemption to deny access to open charge files and cases in litigation.  Information withheld pursuant to the Exemption 7(A) includes, but is not limited to:

• Any charge files requested by the Charging Party or the Respondent where the Commission has not terminated all of its proceedings.
• Respondent access to the charge file during the 90-day notice of right to sue period, unless the Charging Party has filed suit on the charge.
• Any charge files involved in cases that the Commission is litigating or considering litigating.

Exemption 7(B): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records "… would deprive a person of a right to a fair trial or an impartial adjudication." EEOC does not use this exemption.

EXEMPTION 7(C): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records "… could reasonably be expected to constitute an unwarranted invasion of personal privacy."  EEOC routinely uses this exemption in conjunction with Exemption 6.  Information withheld pursuant to the Exemption 7(C) includes, but is not limited to:

• Individuals' home addresses and home telephone numbers, if not known to the requester.
• Social Security numbers and other personal information from charge files.
• ADEA and EPA charge files requested by third parties.
• ADEA and EPA charge files requested by the Respondent while the 90-day Notice of the Right to Sue period is pending, unless the Charging Party has already filed suit.
• Complainant information contained in Federal sector files.

EXEMPTION 7(D): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records "… could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source."  EEOC uses this exemption to deny access to confidential sources that have provided information during the investigation of allegations of discrimination. Information withheld pursuant to the Exemption 7(D) includes, but is not limited to:

• Confidential Witness Statements.
• Any references that would identify confidential witnesses. Documents must be marked confidential by the investigator or the Commission.

Exemption 7(E): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records "… would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." EEOC rarely uses this exemption.

Exemption 7(F): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records "… could reasonably be expected to endanger the life or physical safety of any individual." EEOC very rarely uses this exemption.

EXEMPTION 8

Exemption 8 protects from disclosure matters that are "contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions."  EEOC does not use this exemption.

EXEMPTION 9

Exemption 9 allows for the withholding of "geological and geophysical information and data, including maps, concerning wells."  EEOC does not use this exemption.

EXCLUSIONS

The FOIA also contains three specific exclusions regarding criminal records and certain law enforcement records held by the Federal Bureau of Investigations.  The EEOC does not maintain or possess any records specifically excluded from coverage.

XII. Appeals

Requesters may file an administrative appeal if they disagree with the withholding of information or believe that there are additional records responsive to the request that were not located.  They may also appeal the denial of a request for expedited processing or a fee waiver. The appeal must be received within ninety days of the date of the EEOC's determination letter.  The time may be extended if unusual circumstances prevented an appeal or if the EEOC failed to notify the requester of the right to appeal in its determination letter.  All appeals must be made in writing and addressed to:

Assistant Legal Counsel
Office of Legal Counsel
Equal Employment Opportunity Commission
131 M Street, N.E., Suite 5NW02E
Washington, DC 20507

When the appeal is submitted by mail, both the front of the envelope and the appeal letter should contain the notation "Freedom of Information Act Appeal."  When the appeal is submitted electronically, both the cover and the appeal letter should contain the notation "Freedom of Information Act Appeal."

There is no specific form or particular language needed to file an administrative appeal, but you must enclose a copy of the initial determination letter.  You may explain the reasons for your disagreement with the action, but a simple statement that you are appealing the decision is sufficient.  If; however, you are appealing because you believe there are additional records that have not been located in response to your request, you should specify why you think such records exist and, if possible, where you believe they might be located.

The Office of Legal Counsel will review the withheld documents and the reasons cited in the initial decision, and will make an independent determination as to whether your request was properly processed.

Under the FOIA, EEOC is required to make a determination on your administrative appeal within 20 business days. In unusual circumstances, the EEOC may extend the time to respond by an additional 10 working days. If this occurs, you will be notified in writing prior to the expiration of the 20 working days. The EEOC may also toll (stop) processing your request to seek additional information or clarifying information about fees. If this occurs, you will be notified in writing prior to the expiration of the 20 working days.  The time to respond to your appeal will resume when EEOC receives your response to its request for information.  The Office of Legal Counsel may take one of several actions on your appeal.  It may affirm the decision in full and identify which exemptions have been appropriately claimed.  It may affirm part of the decision (identifying the applicable exemptions), but order the release of other information previously withheld. It may order the release of all withheld information. Finally, under some circumstances, it may return or "remand" the request for complete reprocessing. When a case is remanded, you will have an opportunity again to appeal to the Office of Legal Counsel after the District Director has processed the records if you remain dissatisfied with the District Director's action.